The petition of Ichrak Nourel Hak, the National Council of Canadian Muslims (CNMC) and the Canadian Civil Liberties Association (CCLA) was filed Monday morning in Superior Court, confirmed their lawyer Catherine McKenzie to Radio-Canada.
The law, which enshrines the secularism of the state, prohibits the wearing of religious symbols by officials in positions of authority, including teachers. It came into effect Sunday evening, after being sanctioned by the lieutenant-governor of Quebec, Michel Doyon.
Under the law, Ms. Nourel Hak will have to withdraw her hijab if she wants to teach at a public elementary or secondary school after graduating in 2020.
The Quebec law includes a grandfather clause for employees already wearing a religious sign, but it is only valid for employees who were under contract when the bill was introduced on March 28, 2019, and who will not change jobs or employers afterwards.
The petition states that Ms. Nourel Hak chose to wear her hijab independently, in order to comply with her religious beliefs, and that she "can not imagine withdrawing her simply because a law obliges her to choose between his religious practices and his right to teach in the province ".
Ms. Nourel Hak is stunned, hurt, and insulted that the government would snatch her long-awaited career simply because she wears the hijab. She does not see how the expression of her faith could be a problem in her ability to teach.
"The message we are going to Ms. Nourel Hak, is to go to work in the private sector, it is to go to work in denominational schools, it is not to integrate Quebec institutions . But I think that we do not integrate in the rejection, we integrate by and in institutions, and I think that's what she tries to do by becoming a teacher, "argued in French Bochra Manai, CNMC spokesperson for Quebec, during a press briefing from both organizations, widely given in English.
"Simply put, last night, the Quebec government legalized religious discrimination," said the organization's chief executive, Mustafa Farooq.
The CNMC and the CCLA, two organizations whose national offices are in Ontario, are not at their first legal challenge in Quebec. In 2017, they challenged the constitutionality of the state's religious neutrality law, which provided for the provision and procurement of face-to-face services adopted under the previous Liberal government. Both groups had succeeded in invalidating one of the provisions of the law.
An unconstitutional law?
According to the petition, the law on secularism "violates the freedom of religion and discriminates against religious minorities, since it potentially requires thousands of people to choose between, on the one hand, their faith, their identity and the expression of their beliefs, and, on the other hand, their right to participate in the work of provincial public institutions. "
"It's a difficult day because the government, which should be the authority that represents all Quebeckers, is acting in an unethical, inconsistent, unconstitutional and undemocratic way with part of its population," said Ms. Manai. interview at Radio-Canada.
The document presented in court by the plaintiffs asserts that Quebec is not able to justify these infringements of rights and freedoms, since there is "no evidence that officials with religious symbols pose any problem that could justify the adoption of such a clearly marginalizing and discriminatory law ".
They further argue that the law violates several constitutional rules and that the waiver provisions included therein do not preclude a judicial review exercise.
They argue, for example, that "the pith and substance of the law makes it criminal law", and that the Quebec government has exceeded its powers, since the criminal law is a federal responsibility.
In attempting to regulate the relationship between religion and the state by prohibiting a significant number of state employees from wearing religious symbols at work, the law contravenes the constitutional division of powers.
The petition also alleges that the law "violates the basic requirements of the rule of law, since the prohibition on" religious symbols "is excessively vague and impossible to apply uniformly".
"The law's definition of" religious symbols "contains a subjective and objective religious criterion, neither of which is sufficiently precise to give true indications to persons who are supposed to conform to it or enforce it". read it.
Given the number of institutions and individuals that will apply the prohibition, the application will necessarily be arbitrary, and therefore contrary to the principle that the law applies equally to all. This renders the law invalid and inoperative.
The plaintiffs finally argue that the law "excludes visibly religious people from participation in a range of important public institutions and thus prevents Quebec public institutions from reflecting the communities they are meant to serve."
On the strength of these arguments, the motion asks the Superior Court to declare the law invalid and even to suspend its enforceable provisions "in order to prevent their application from causing immediate, significant and irreparable prejudice in the interim".
During their press conference, the two groups evaded any explanation of the reasons that would make the law on secularity criminal legislation, focusing instead their advocacy around the rights of individuals.
"No one should be excluded from a job to avoid a problem that does not exist. More importantly, no government should tell religious minorities and others that they have no place. In a free and democratic society, governments have the responsibility to protect and defend minority groups to end division and discrimination, not to encourage them, "said CCLA Director Noa Mendelsohn Aviv.
In an interview on Radio-Canada radio on Monday morning, Minister responsible for the matter, Simon Jolin-Barrette, said he was "fully confident" that the Quebec law is valid.
We used the derogation clauses in the charters (Canadian and Quebec rights and freedoms), in particular to make sure that Parliament decides, not the courts.
"If ever there were people who challenged the law in court, we will be present to ensure compliance with the law and its enforceability," said the minister.
"Because it must be said: from the moment a law is passed by Parliament, the principle that applies throughout the challenge of the law, during the various appeals and the different stages, it is the law enforcement, "he said.
A secularism embodied in collective agreements
In a scrum of press shortly after in the National Assembly, Mr. Jolin-Barrette said that the law on secularism "fits into the collective agreements" teachers, under an amendment he tabled Sunday.
Employees who do not comply with the law are subject to the disciplinary measures provided for in employment contracts, he said.
There is no contract of employment between a student (…) and the state. So for that, it's important to limit the grandfather clause to those who are already in office.
The minister also pointed out that the government made a "compromise" by including a grandfather clause in its bill. According to him, many Quebeckers did not want such a clause.
The exemption provisions used by the government allow the secularity act to be exempted from sections 1 to 38 of the Quebec Charter of Human Rights and Freedoms and sections 2 and 7 to 15 of the Canadian Charter. rights and freedoms.
Dean of the Faculty of Law of McGill University, Robert Leckey, argues that lawyers could use several sections of the Canadian Charter that are not subject to the notwithstanding clause to challenge the law.
Shared Reactions in Ottawa
In Ottawa, reactions to the passage of Bill 21 in Quebec did not wait until Monday.
Federal Justice Minister David Lametti recalled that his party has "always stood up for the individual rights of Canadians." "For now, we will study the law as promulgated with the amendments and we will monitor what is happening on the ground. That's all, "he offered.
However, it did not appear to exclude federal involvement in this court challenge. "It's not up to a government to tell people what to wear or not to wear. We firmly believe that Canada is a secular country and that is reflected in our institutions, and we will defend the values of the charter, "he said.
As far as the Conservatives are concerned, we have only touched on the areas of provincial jurisdiction that have been respected.
"From our point of view, everything was done according to the areas of jurisdiction of Quebec, which has used the clause notwithstanding as provided for in the Canadian Constitution. The provinces have the right to use it, and they will pay a positive or negative political price for that, "commented Gérard Deltell.
Like David Lametti before her, NDP MP Hélène Laverdière has decried the fact that the Quebec government is trying to tell people, "and especially women," what to wear.
"It's a shame that the gag has been used on an issue like this, because there are still new elements, we can not just say that it is something that has been discussed for 10 years, there is has new elements in the proposal, "she said.